John Conway and Louth Environmental Group v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 25 March 2022
• Neutral Citation: [2022] IEHC 136
• Court: High Court
• Docket Number: [2020 No. 693 JR]

Between

John Conway and Louth Environmental Group

Applicants

and

An Bord Pleanála

Respondent

and

Crekav Trading GP Limited

Notice Party

[2022] IEHC 136

[2020 No. 693 JR]

THE HIGH COURT

JUDICIAL REVIEW

Costs – Inadequate documentation – Planning and Development Act 2000 s. 50B(2A) – Applicants seeking costs – Whether the notice party should pay costs

Facts: In Clonres CLG v An Bord Pleanála (No. 1) [2018] IEHC 473, Barniville J granted certiorari of a permission granted by the respondent, the board, for a housing development on the lands to which the proceedings related. Following remittal, refusal and a further judicial review by the developer (Crekav Trading GP Ltd v An Bord Pleanála [2020] IEHC 400), a fresh application was made. In Clonres CLG v An Bord Pleanála (No. 2) [2021] IEHC 303, Humphreys J quashed a grant of permission by the board on foot of that further application. In Clonres CLG v An Bord Pleanála (No. 3) [2022] IEHC 42, Humphreys J refused leave to appeal. The most recent permission was challenged in three separate cases: Clonres CLG v An Bord Pleanála [2020 No. 725 JR], Conway v An Bord Pleanála [2020 No. 693 JR] and Sweetman v An Bord Pleanála [2020 No. 729 JR]. In Clonres, the costs issue was resolved with an order for costs against the board. In Sweetman, a final order was made by consent in agreed terms. In Conway, a costs issue arose because, while the board was prepared to pay all the costs, the applicants, Mr Conway and Louth Environmental Group, wanted an order for costs against both the board and the notice party developer, Crekav Trading GP Ltd. The parties agreed that s. 50B(2A) of the Planning and Development Act 2000 would be taken to apply. The applicants contended that the notice party should pay costs or part of the costs because the error stemmed from inadequate documentation submitted. The applicants also relied on the notice party having defended the proceedings.

Held by Humphreys J that it would be an unduly restrictive interpretation to regard s. 50B(2A) as requiring a mechanistic mandatory calculation of the exact extent to which both the respondent and notice party contributed to the applicants obtaining relief and mandating an apportionment accordingly in every case. Humphreys J held that inadequate documentation by a developer or any applicant in an administrative process is not in itself a ground for certiorari unless the document is an indispensable one like an application form: Atlantic Diamond v An Bord Pleanála [2021] IEHC 322. Humphreys J held that it is the grant of permission by the decision-maker in erroneous reliance on flawed material or a failure to rectify such inadequacies that creates a pleadable ground. Humphreys J did not think that any defects in the developer’s material were in and of themselves an automatic ground for a costs order. Humphreys J held that the notice party having defended the proceedings was significantly diluted by the fact that both Conway and Clonres were heard together, and indeed by the fact that in Clonres no order for costs was sought against the developer. Humphreys J held that the court was not obliged to make an order for costs against a notice party in such circumstances. It was not clear to Humphreys J that there was any substantial increase in the length of the hearing as a result of the notice party’s participation in the Conway case above and beyond the increase caused by its participation in the Clonres case, in circumstances where both were heard together; nor did the developer raise a vast suite of unique points that went far beyond what the board submitted.

The order made on 7th March, 2022 for which Humphreys J gave reasons was that: (i) the applicants would have their costs as against the board (including reserved costs); and (ii) there would be no order for costs against the notice party.

Costs awarded to applicants.

JUDGMENT of Humphreys J. delivered on Friday the 25th day of March, 2022

1 In Clonres CLG v. An Bord Pleanála (No. 1) [2018] IEHC 473, ( [2018] 7 JIC 3130 Unreported, High Court, 31st July 2018), Barniville J. granted certiorari of a permission granted by the board for a housing development on the lands to which the proceedings relate. Following remittal, refusal and a further judicial review by the developer ( Crekav Trading GP Ltd. v. An Bord Pleanála [2020] IEHC 400, [2020] 7 JIC 3108 (Unreported, High Court, Barniville J., 31st July, 2020)), a fresh application was made.

2 In Clonres CLG v. An Bord Pleanála (No. 2) [2021] IEHC 303, ( [2021] 5 JIC 706 Unreported, High Court, 7th May, 2021), I quashed a grant of permission by the board on foot of that further application.

3 In Clonres CLG v. An Bord Pleanála (No. 3) [2022] IEHC 42, ( [2022] 2 JIC 0404 Unreported, High Court, 4th February, 2022), I refused leave to appeal.

4 An issue has now arisen as to costs. The most recent permission was challenged in three separate cases: Clonres CLG v. An Bord Pleanála [2020 No. 725 JR], Conway v. An Bord Pleanála [2020 No. 693 JR]...